Upon the foregoing papers, it is ordered that plaintiff's motion for partial summary judgment in its favor on the third cause of action is denied. The Court grants defendant reverse summary judgment dismissing the third cause of action, and the remainder of the action shall continue.

Defendant Trix Rosen was among a group of tenants who instituted two special proceedings in Civil Court for appointment of an administrator pursuant to Article 7-A of the Real Property Actions and Proceedings Law. See Garber Affirm., Exs B, D. Both special proceedings were dismissed without prejudice. In the third cause of action, plaintiff seeks to recover from defendant the attorneys' fees that it incurred in defending the two proceedings.

Article 19 of defendant's lease states, in pertinent part:

"If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to be observed or performed under or by virtue of any of the terms or provisions in any article of this lease, then, unless otherwise provided elsewhere in this lease, Landlord may immediately or at any time thereafter and without notice perform the same for the account of Tenant, and if Landlord makes any expenditures or incurs any obligations for the payment of money in connection therewith including, but not limited to, attorneys' fees in instituting, prosecuting or defending any action or proceeding such sums paid or obligations incurred with interest and costs shall be deemed to be additional rent hereunder and shall be paid by tenant to Landlord within five (5) days of rendition of any bill or statement to Tenant therefor." See Garber Affirm., Ex F.

Many courts have construed this standard provision. Because this paragraph provides that a landlord may only seek to recover attorneys' fees incurred in connection with performing an obligation for the "account of Tenant," "[t]his provision clearly requires that the tenant owe an obligation to a third party so that the landlord can perform it in the tenant's stead." Frank B. Hall & Co. v. Orient Overseas Assocs., 84 AD2d 338, 342 (1st Dept 1982), affd 56 NY2d 965(1982). "The provision seems intended to apply in situations where, for instance, a landlord incurs an expense because a tenant causes damage to the premises and, in violation of the lease, fails to make repairs." Kips Bay Towers Associates v Yuceoglu 134 AD2d 164, 165 (1st Dept 1987); see also Duane Reade v Highpoint Assoc. IX, LLC, 36 AD3d 496 (1st Dept 2007). [*2]

Here, the violations alleged in the two Article 7-A proceedings are building conditions which pose a danger to the life, health, or safety of the building tenants, many of which that are not attributable to any default or damage caused by defendant. See Garber Affirm., Exs B, D. Thus, "[t]he clause in the lease providing that the tenant be required to pay attorneys' fees is inapplicable to the facts of this case since the clause applies to actions which are commenced as a result of the tenant's default." St. George Tower & Grill Owners Corp. v Honig, 232 AD2d 475, 476 (2d Dept 1996). Therefore, plaintiff fails to make a prima facie case for summary judgment against defendant as to the third cause of action. Given the lack of a prima facie case, the Court does not reach defendant's other arguments in opposition to the motion. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).

Plaintiff's reliance on "the reciprocal nature" of Real Property Law § 234 is misplaced. In Thenebe v Ansonia Associates (226 AD2d 211 [1st Dept 1996]), the Court held:

"[S]ince tenants may recover legal fees in successfully prosecuting RPAPL article 7-A proceedings where there is an attorneys' fees provision in the lease [citation omitted], landlords should be able to recover such fees in successfully defending such proceedings. Contrary to petitioners' contention, the attorneys' fees provision in the expired leases was an appropriate basis on which to apply Real Property Law § 234 . . ."

However, the Court added, "only those tenants whose leases specifically provide for payment of attorneys' fees incurred as a result of respondent defending against lawsuits precipitated by their actions may be held liable. To that end, each tenant's lease should be reviewed individually to ascertain whether it contains such a provision." Ibid. Here, defendant's lease does not contain such a provision.

Clearly, plaintiff is not entitled to recover from defendant the attorneys' fees incurred in defending the Article 7-A proceedings, pursuant to Article 19 of defendant's lease. Therefore, the Court grants defendant reverse summary judgment dismissing the third cause of action.

The parties are directed to appear at a preliminary conference in IAS Part 7, 111 Centre St Rm 949, on May 17, 2007 at 9:30 am. Copies to counsel.

/s

Dated: 4/11/07

J.S.C.